Why I am horrified by the Centre for Social Justice’s proposals

Every Family Matters, a report prepared for the Conservative Party by Iain Duncan Smith’s ‘Centre for Social Justice’ think tank, received a good deal of press attention at the weekend.

The report recommends a compulsory, three-month “cooling off” period for couples who were set upon divorce. It proposes the founding of “family relationship hubs”: a nationwide network of counselling centres at which families would receive advice before and after marriage. It also recommends that couples who are living together should not be afforded the same legal rights as those who are married, arguing that “healthy marriages build healthy families”.

I read this report from cover to cover – and its conclusions horrified me. I note that my sentiment is shared by others.

Ironically, these proposals are throwbacks to Victorian times – at a time when the Conservative Party is at pains to present itself as modern and progressive!

Women

I have seen the “Victorian Woman” described thus: She was a perfect lady, who did not work, (except for charities); she did not earn (except perhaps for literary and artistic work); she ran her household efficiently, and she found fulfillment bringing up her husband and children. She could have some education, but not much, and avoided involvement in politics or argument with her husband.

“Be faithful unto death”, intoned one Victorian sampler that I saw in a museum. Those words seem to be applicable here. The old mindset is applied to divorcing couples, ostensibly for the benefit of their children. The hapless children apparently deserve to have their parents living together in the same house, regardless of the misery, the arguments, the infidelity or the trauma.

The introduction of a three-month “cooling off” period would make divorce more difficult. The aim: to encourage couples to stay together. This begs the question: does the fact of marriage hold couples together? I don’t think it does. Moreover, I am unconvinced that Australian-style “family relationship hubs” would have the desired effect. The husbands and wives who come to see me and instruct me to proceed do not do so at the drop of a hat. They have already spent plenty of time “thinking”.

However, the authors of this report would force you to do some more “thinking” – even if you have endured a lengthy period of soul-searching and every day is a misery. Even if, during this “thinking” period, you go home to your lover every night. Even if you loathe your spouse, or if both of you know that there is simply nothing left.

Who, in this profession of mine, seriously thinks that attendance at a “family relationship hub” will prevent a couple’s marital breakdown? Once the love has gone, it has gone. Nothing can restore a relationship when there is little left to work with. These plans are expensive, outdated, wishful nonsense.

Property

The report proposes a more rigid matrimonial property regime, with a “more narrow definition” of what constitutes a party’s “reasonable needs”.

This would mean that the fairness and discretion with which a judge currently allots assets to cover genuine need – although in truth, 99 out of 100 cases barely stretch even that far – is likely to follow the European models, whereby property is strictly divided. Yet these models are inferior to our own, because of their known unfairness to the weaker parties.

So why the recommendation? The authors are clearly familiar with a small number of high profile and largely irrelevant cases in central London. However, they are not so obviously familiar with what is happening in the rest of the country, where it is rare to encounter “assets surplus to need”. I would add that it is rarer still for judicial discretion to be applied to achieve anything other than fairness, when it is known that divorce can often leave women at a disadvantage. On the strength of these proposals, they would fare worse still.

Initially, the new regime would be implemented away from the courts. There would be ‘catch all budgets’ to complete. Forms to fill in. Rules to follow. Perhaps tribunals would be set up to make strict decisions based on strict rules.

It reminds me of the fiasco of the CSA. The Conservatives got it disastrously wrong then. Their Family Law Act 1996, which was a public relations disaster because much of it was confused, unworkable and never brought into force, is expressly lauded in this report.

Children and unmarried parents

This report highlights the plight of children born to single women out of wedlock. It describes how they are more likely to take drugs, commit crimes and live in poverty, if not in care of their local authorities.

However, the authors argue that unmarried couples – and by extension, their children – do not deserve the legal remedies afforded to those families that have embraced the “utopia” of marriage.

In other words, if you are a product of an unmarried relationship, the authors are sweeping you under the carpet. If a couple divorces, their children must be brought to the court’s attention. The children’s rights and welfare are prioritised; indeed, there may not be a divorce until the court is satisfied that suitable arrangements for the children have been made.

However if a couple’s relationship breaks down and they are not married, that couple’s children do not have to be brought to the court’s attention at all. They are all but invisible. They deserve better – and the authors of this report should know better.

The termination of a marriage is regulated by law. When there is no marriage, there is no regulation. Can that be right morally, socially or legally? It cannot.

21st century families

Some of today’s families are headed by same sex parents, with or without children, who may or may not be biologically related to their sons and daughters. In these families and others, children may be adopted nationally or internationally and have a different ethnic or cultural background. Families may include step-parents and step-siblings. There may be step-grandparents and step-cousins. Parents and guardians may be openly gay, heterosexual or bisexual. We have the most complex families ever known, because our society has changed beyond recognition. There is no longer any social stigma in cohabitation. Women are no longer obliged to depend upon husbands for the procreation of children or for an income, as in Victorian times.

Today, most couples live together before marriage and both work. They have children when it suits them, often before marriage. Some never trouble to marry, for varied and often complex reasons. Some see no need to disturb a relationship that works well. Others see it as their right not to marry. Some are legally prevented from marrying. Others are unmarried because their partner refuses to; it is too trite to say “walk away”, because we are human beings with feelings and emotions. For such partners, additional factors may also come into play: if there are children, for example, or if the weaker party has no income, capital or pension of their own.

Right now, millions of couples are cohabiting. The law in Scotland provides for cohabiting couples; in the rest of the United Kingdom, however, unmarried couples who separate fall below the court radar. At present, despite the recommendations of the Law Commission, despite various, failed private members’ bills in Parliament and despite the proliferation of cohabiting couples and children, there is no law to regulate the end of such relationship and to attend to these couples’ children.

I am married and I advocate marriage for those who wish to commit in that way. But I am also prepared to recognise that everyone has the right not to do so. I believe that the law should be available to all families, not just the select few – and certainly not the innocents who currently “make do” with the odd CSA cheque and a hotch-potch of inadequate legislation.

Regular readers of this blog will be aware of my belief that family law should strive to achieve social justice for all. My fear is that if the Conservative Party wins power and adheres to the Centre for Social Justice’s report, the Victorian era will return to British politics. Everything that can be done must be done, to prevent this from becoming Conservative Party policy and ultimately the law.

Lenny - July 19, 2009 at 1:31pm

“Moreover, I am unconvinced that Australian-style “family relationship hubs” would have the desired effect.”

Presumably the desired effect would be to increase understanding of marital problems, and thus facilitate more informed choices.?
Is there any evidence that they’re ineffectual in Australia.? If not, why do you think they would be ineffectual in the UK.?

“The husbands and wives who come to see me and instruct me to proceed do not do so at the drop of a hat. They have already spent plenty of time “thinking” ”

You recognised elsewhere, in one of your other excellent posts, that the litany of problems which people present when they come to see you, are in fact symptoms and not the underlying causes.If someone has a health problem, and they spend several months “thinking” about their symptoms, are they likely to be any more informed at the end of that time.? Of course they aren’t. What would help them to become more informed would be to consult a health practitioner. In the case marriage problems, obviously the practitioner would be a suitably qualified and experienced counsellor or therapist who could help put the symptoms to one side in order to get at the underlying causes.

“Who, in this profession of mine, seriously thinks that attendance at a “family relationship hub” will prevent a couple’s marital breakdown?”

Does the question presuppose that members of the legal profession have some innate capacity to distinguish between marriages that are beyond help, and those that are on the critical list but may still respond to appropriate help.?

It’s self-evident that the issues of “divorce” fall into two quite separate areas. Firstly the question of whether the marriage has genuinely broken down irretrievably, ie in the literal sense, and secondly, if it has, all the necessary financial and legal arrangements etc that follow. Listening to lawyers one often gets an uneasy feeling that there is an indecent haste to put the cart before the horse, by downplaying the first area, for which they’re not trained, and catapulting straight on to the second for which they are.

Surely part of the objective of the law should be to identify those marriages which have genuinely broken down irretrievably, ie again, in the literal sense. It’s not immediately obvious how the law can possibly do that, if the people who could help with that identification, ie counsellors and therapists, are not fully recognised as part of the process. If the law is not going to make any attempt to identify those marriages which have genuinely broken down irretrievably, then it might as well scrap the notion of irretrievability altogether.

I’d be very interested to read a summary of your own views on what the objectives of the law should be in this area, and proposals for achieving them.

Marilyn Stowe - July 23, 2009 at 3:45pm

Thank you very much for all your comments.
Reform of divorce law is long overdue. I believe it is up to the couple themselves to decide if they wish to divorce (in the same way as they make the decision to marry) and therefore it is not the function of the law to interfere in their decision making process. I think such a couple should in the same way they agree to marry, agree to divorce without being put through artificial hoops or attributing blame which will oblige them to look back, not forwards to the future.
But as you know, some people think that is too liberal a view, and fault should still be attributed to one party and/or that the couple should be forced to wait a long time, “just to make sure”. To my mind that imposes a form of ‘punishment’ and stigma which I do not believe fits within the ethos of modern family law.
There is a problem where only one party wants to get divorced and the other may be unaware of the position. This person needs time to come to terms with the breakdown and thus the interests of both have to be fairly balanced in the divorce process. How? Other jurisdictions deal with the divorce process in different ways but acceptance of and recovery from marital breakdown, seems to occur when the divorce is over and not before. Prolonging the procedure where only one party wants a divorce, objectively may not be in either spouse’s best interests.

N Brown - July 29, 2009 at 1:30pm

It is mentioned in the above post that a ‘relationship hub’ would seek to clarify the best way forward for the family if indeed that unit were to breakdown. As a product of a broken marriage myself I would suggest that whoever takes a lead role in developing this system, should the authorities deem it applicable, use individuals of similar background within their research strategy.

The life of a child can be irrevocably changed, for better or worse (ironically), in the event of divorce and although the law favours maternal guardianship, particular emphasis should also be placed upon correct parent-child placement, regardless of gender. Given the downsides of divorce and subsequent mental health issues that can arise from marital breakdown I would strongly suggest periods of assessment during the following 3-5 years of parents lawfully handed guardianship of the children.

This would obviously neccessitate huge resource and skillful handling to ensure minimum disruption to the current family unit even if it is on the brink of collapse.

Unless you ask those who have experienced a childhood blighted by divorce you will never truly understand the ramifications that the actions of adults can have, whether emotional or physical.

If a scheme such as the ‘family relationship hub’ had been in place when my parents suffered a divorce I believe strongly that my world would have become a far less miserable place.

To conclude, I disagree with your comments and suggest that if you believe that the presence of a ‘hub’ would be to the detriment of the child then your are sadly mistaken. A return to Victorian values… no, just common sense built up from countless ruined young lives and a system that supports no-one in the way they actually need it.

N Brown - July 29, 2009 at 5:25pm

To add, what your profession fears most is huge losses of revenues resulting from people amicably sorting out their differences (if the relationship is salvageable), and staying together. You see the Conservatives proposal as meddling in your business in order to assist those ‘clients’ in two minds over their divorce before you get to them and make their mind up for them.

Marilyn Stowe - July 31, 2009 at 5:50pm

Thank you for your comments.
I agree with you that children are the first priority of family breakdown. But I dont limit those children purely to those born of married couples, which was the main thrust of my comments. I believe cohabitants too should have their families fully considered by the courts within the context of the broken cohabitation, and not the ad hoc arrangements that exist at the moment. What you say seems to bear this out.
I separate management of children from the right of couples to divorce. If you have a look at some of my posts, you will see that care of children in divorce is very much to the forefront of my mind. In this country I dont believe we have the proper facilities. The resources required to do this would be phenomenal and that is why I am sceptical of these “relationship hubs.”
If you read some other of my posts, it is also clear that divorce is the last resort and not the first. That is how I manage my practise and advise my clients.
But …….if a client has determined upon a divorce, then it should be dignified and sensible……. and fair. Whilst I respect your opinion, I have a number of clients who tell me that their decision to divorce was based upon their experiences as deeply unhappy children living within a deeply unhappy marriage. Their own ability to form relationships has been badly affected by their experiences of their parents who chose not to divorce but which in the eyes of their children would by far have been preferable. Thus affected by their parents relationship, unable to maintain a relationship of their own, they have elected to leave it because they believe it is to benefit their children.
Overall isnt it the case that primary responsibility lies with parents who having made their decision, should try their best to make sure their children come through, to the very best of their ability?

Lenny - August 1, 2009 at 11:57pm

Whilst I respect your opinion, I have a number of clients who tell me that their decision to divorce was based upon their experiences as deeply unhappy children living within a deeply unhappy marriage. Their own ability to form relationships has been badly affected by their experiences of their parents who chose not to divorce but which in the eyes of their children would by far have been preferable. Thus affected by their parents relationship, unable to maintain a relationship of their own, they have elected to leave it because they believe it is to benefit their children.

Sound like examples of how a pattern reverberates down the generations.

Obviously, if a marriage is in a poor state of health, then simply staying together without making any effort to understand the underlying problems could be just as potentially negative for the children as splitting up. It never ceases to amaze me how adults can behave so inconsistently and immaturely in the face of marital problems, whilst simultaneously expecting their children to display understanding and maturity. The choice isn’t simply between splitting up or putting up, it’s between wallowing in ignorance or becoming more informed.

Overall isnt it the case that primary responsibility lies with parents who having made their decision, should try their best to make sure their children come through, to the very best of their ability?

Of course; but do you think that the parent’s decision should be informed and objective.? If so, how would you achieve that.?

Lukey - May 9, 2011 at 6:41pm

This is a straight quote from the Report – you may horrified by it Marilyn but I think it is very encouraging to see that this report takes into account ALL parties and seeks to avoid patronising the general public:-

==============================================================
People who don’t get married have reasons for doing so.
To extend the law to cohabitants would be a bonanza for
lawyers…We should respect the expectations of
cohabiting couples…Imposing marriage laws on non
married couples is to deny people’s human rights.

We do not believe that reforms of the law should simply ‘chase the practice’.
Given the steep rise in cohabitation, an approach which is supportive of
marriage arguably precludes legal protection for cohabitants (or at the very
least, any extension of rights to equivalence with marriage and thereby
confusion with marriage).

Breakthrough Britain expressed grave concern over the negative implications of imposing rights and responsibilities on cohabiting couples. Notwithstanding individual cases of apparent injustice, many cohabitees have voluntarily chosen to reject
marriage with the protection it provides. The liberal argument that people
should not be penalised for this choice is flawed. Attaching legal provision
would be illiberal (because it imposes a contractual obligation not freely
entered into) and intrusive and would encourage inherently more
unstable relationships.
=============================================================

JamesB - April 2, 2013 at 5:34pm

Hi, I just read through all of this and I do disagree with you Marilyn. I do think that Divorce reform is needed and that Divorces should be made harder not easier and statements of fact should not be made up as they are today also.

Everytime divorce is made easier, more of them happen. The current use of UB petitions to provide divorce on demand is contrary to the reason it was put into law.

Politicians write the law, lawyers implement it. Unfortunately, the mess has come about because of an old Judge in the 1970s who descided to implement the UB part regardless on if the man had actually done anything wrong. i think it was Wachtell, where the Judge said, of course the woman should not be penalised for her bad behaviour.

Personally, you either have fault or no fault divorce I think and I am for no fault. You fall on one side of that argument, and I the other. I do not have to declare a vested interest though as I think you might and perhaps should have done with this article, as it is in your interest as a divorce lawyer for more divorces to happen. I do not think they are as good a thing as you do I think. Anyway, I did enjoy reading the article and agree with you that the CSA was and is a bad idea though.

JamesB - April 2, 2013 at 5:39pm

To clarify, no I don’t believe on unilateral no fault divorce on demand that is bad for everyone and everything I think. Either marriage means something or it doesn’t. To say either side can finish it regardless is to make it worth nothing and no more than a business transaction sadly. Church is struggling with these sort of issues also, too much liberalism and you find there is nothing left. In their case with the church, in family law cases, with fewer marriages.

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